Poultney Props., 98-7-17 Vtec

Citation98-7-17 Vtec
Case DateJanuary 17, 2020
CourtSuperior Court of Vermont

Poultney Properties LLC Change of Use & SP App.

No. 98-7-17 Vtec

Superior Court of Vermont, Environmental Division

January 17, 2020

Count 1, Municipal DRB Multiple Types (98-7-17 Vtec)

Title: Motion in Limine to Narrow Scope (Motion 15)

Filer: Poultney Properties, LLC.

Response filed on 01/31/2020 by Attorney Gary R. Kupferer for Interested Person Town of Poultney Opposition

Response filed on 02/03/2020 by John Swenor, Interested Person Opposition

Response filed on 02/07/2020 by Neal C. Vreeland, Interested Person Opposition

David R. Cooper (ERN 4756), Attorney for Appellant Poultney Properties, LLC.

Interested Person Concerned Citizens of Poultney

Gary R. Kupferer (ERN 3547), Attorney for Interested Person Town of Poultney

Rodney E. McPhee (ERN 3612), Attorney for party 2 Co-counsel


Thomas G. Walsh, Judge


Poultney Properties, LLC (Poultney Properties) appeals the partial denial of its application for change of use and site plan approval by the Town of Poultney Development Review Board (DRB).[1] Mr. Neal Vreeland and a group of Poultney residents, Concerned Citizens of Poultney, and several individual neighbors join the appeal to oppose the application.[2] Before the Court is Poultney Properties' motion in limine to narrow scope of the issues for trial and to exclude evidence on multiple grounds.

In this matter, Poultney Properties is represented by David R. Cooper, Esq., and David Carpenter, Esq. The Town of Poultney is represented by Gary R. Kupferer Esq. Mr. Vreeland, Mr. Swenor, Ms. Pepler, and Mr. and Mrs. Riberio are self-represented. Concerned Citizens of Poultney is represented by its spokesperson, C.B. Hall.


Currently before the Court is Poultney Properties' motion in limine to narrow scope of the issues for trial and to exclude evidence. First, Appellants argue that § 1203 of the Town of Poultney Unified Bylaws (Poultney Bylaws) is (1) standardless and unenforceable and (2) § 1203(B) regulates noise only to the extent that it arises from vehicle circulation, parking, and loading facilities at the project site. Second, Poultney Properties contends § 711 is not applicable to nonconforming use when the applicant's use is permitted and only applicable to proposed enlargements for nonconforming structures. The Town of Poultney (the Town) and Mr. Vreeland oppose the motion. We address these issues in order below.

I. Whether § 1203 of the Poultney Bylaws is vague and unenforceable.

Poultney Properties argues the §§ 1203(A)-(D) of the Poultney Bylaws, with the limited exception of § 1203(B) regarding parking requirements, is standardless and therefore does not require evidence to demonstrate compliance. Appellant's Motion in Limine to Narrow Scope of Issues for Trial and to Exclude Evidence at 1-5, filed Jan. 15, 2020. The Town, joined by Mr. Vreeland, asserts § 1203 of the Poultney Bylaws contains enforceable regulatory standards which require evidence to demonstrate compliance and allow the Court to interpret and apply the Bylaws to determine if the project is consistent with the Town Plan's purpose. Town of Poulntey's Opposition to Appellant's Motion in Limine at 1, filed Jan. 31, 2020.

Generally, the Court presumes statutes to be constitutional. In re LaBerge NOV, 2016 VT 99, ¶ 18, 203 Vt. 98 (upholding a Town's noise ordinance against void-for-vagueness arguments) (citing Badgley v. Walton, 2010 VT 68, ¶ 20, 188 Vt. 367 ("[T]he proponent of a constitutional challenge has a very weighty burden to overcome.")); see also State ex rel. City of Providence v. Auger, 44 A.3d 1218, 1226 (R.I. 2012) ("When we review a challenge to a statute or ordinance, we begin with a presumption that the enactment is constitutional."). Nevertheless, all ordinances and statutes are subject to the limits of the Constitution and are unenforceable if deemed overly vague or if the statutes delegates standardless discretion. In re Handy, 171 Vt. 336, 348 (2000). Should an ordinance or statute fail to provide sufficient standards to adequately guide decisionmakers and applicants, it would violate property owners' due process rights.[3] In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt. 201 (holding that a town zoning board's ordinance provided insufficient guidance on how to "protect" natural resources and therefore violated due process).

Laws and regulations are unconstitutionally vague when "they either fail to provide sufficient notice for ordinary people to understand what conduct is prohibited, or allow arbitrary and discriminatory enforcement." [4] In re Beliveau NOV, 2013 VT 41, ¶ 15, 194 Vt. 1. Indeed, a bylaw need only "provide sufficient guidance to avoid standardless discretion" by agencies such that they provide an applicant or property owner with "a general understanding of how to comply with the bylaws." Beliveau, 2013 VT 41, ¶ 20. A bylaw need not provide concrete, specific, or numerical standards to be enforceable. In re Pierce Subdivision Application, 2008 VT 100, ¶ 21, 184 Vt. 365, 375 (noting a bylaw encourages flexible development and is enforceable even when it fails to provide "concrete" or "specific" standards); In re Ferrera & Fenn Gravel Pit, 2013 VT 97, ¶ 16, 195 Vt. 138 (rejecting the need for numerical decibel standards for a Town noise limit).

In our review, we begin with general principles of statutory construction, which look to the plain language of zoning regulations with the purpose of giving effect to legislative intent. See In re Weeks, 167 Vt. 551, 554 (1998). Words in bylaws are interpreted in a manner that gives "effect to the whole and every part of the ordinance." In re Trahan, 2008 VT 90, ¶ 20, 184 Vt. 262 (citing In re Stowe Club Highlands, 164 Vt. 272, 279 (1995)). Therefore, when evaluating vagueness, this Court looks to the entire bylaw, not just a specific subsection, to determine the standard to be applied. Town of Westford v. Kilburn, 131 Vt. 120, 124 (1973); In re Pierce, 2008 VT 100, ¶ 20. Where zoning regulations are ambiguous we interpret them in favor of the landowner. Weeks, 167 Vt. at 555 (citations omitted).

a. Whether § 1203(A) of the Poultney Bylaws is vague and unenforceable.

Concerning § 1203(A), Poultney Properties argues that the terms "maximum safety" and "particular consideration" are not a meaningful standards and subsection (A) fails to provide new or heightened standards that those set forth in the introductory paragraph and 24 V.S.A. § 4416. The Town and Mr. Vreeland assert both these terms provide a sufficient standard, enabling this Court to enforce ordinances and apply appropriate conditions consistent with § 1203(A). We agree that § 1203(A) is enforceable.

Section 1203(A) of the bylaw addresses "[m]aximum safety of vehicular circulation between the site and the street network" and notes "[p]articular consideration shall be given to visibility at intersections, to traffic flow and control, to pedestrian safety and convenience, and to access in case of an emergency." The term "maximum safety" acts as a standard by providing a specific location within which it operates and clearly identifying factors to be considered. See Application of Carrier, 155 Vt. 152, 155 (1990) (noting that a Commission was able to determine compliance with a Newport zoning regulation that required "maximum safety of vehicular circulation between the site and the street network" and "adequacy of circulation, parking and loading facilities with particular attention to safety"); see also In re Woodstock Community Trust and Housing Vermont PRD, No. 203-10-09 Vtec slip op. at 23 (Vt. Super. Ct. Envtl. Div. Oct. 14, 2011) (Wright, J); Scott v. City of Newport, 2004 VT 64, ¶ 2, 177 Vt. 491, 492. Here, the term "maximum" provides sufficient guidance, namely by delineating a degree of sensitivity, such that standardless discretion is avoided. See In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 14 (explaining that "protect" is vague as it does not delineate a degree or level such as total or reasonable protection).

In a similar vein, the term "particular consideration" also provides an ascertainable standard by indicating a degree of sensitivity. See Pelkey Final Plat Major Subdivision, Nos. 172-12-12 and 30-3-12 Vtec slip op. at 26 (Vt. Super. Ct. Envtl. Div. Dec. 31, 2014) (Durkin, J) (stating zoning regulations contained "specific plans for site plan review" that directed the DRB to pay "particular consideration" preservation of various features of landscaping and screening). Here, § 1203(A) identifies key factors assessing particularity: visibility, safety, convenience, and emergency access. In re LaBerge NOV, 2016 VT 99, ¶ 23 (indicating that a standard less vague when it is modified by factors following it); 29 Pleasant St. Design Plan Approval, No. 18-2-16 Vtec slip op. at 6-9 (Vt. Super. Ct. Envtl. Div. Sept. 23, 2016) (Walsh, J) (stating that while the standard "appropriate" was not defined, it was used in multiple contexts and modified by surrounding language such that it was considered enforceable).

We next look to the bylaws as a whole and its enabling statute, the Vermont Planning and Development Act (VPDA), 24 V.S.A. Chapt. 117. Neither the bylaws nor the enabling statute define "particular consideration." The VPDA does, however, in § 4302(d) require regulations to be based upon present conditions and future trends and growth, with "reasonable consideration . . . for the landowner, . . . to needs and trends of the municipality, . . . to the character of the area and to its peculiar suitability for particular uses in relationship to surrounding areas, and with a view to conserving the value of buildings." See also In re LaBerge NOV, 2016 VT 99, ¶ 22 (holding that "the standard of reasonableness at the heart of the Town's noise ordinance is one that numerous courts have upheld against void-for-vagueness...

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